SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1357 

CAF 12-00745 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF ZORAIDA RODRIGUEZ, 

PETITIONER-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

LUCILLE FELDMAN AND MICHAEL FELDMAN, 

RESPONDENTS-PETITIONERS-RESPONDENTS. 

 

CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-RESPONDENT-APPELLANT.

 

Appeal from an order of the Family Court, Monroe County (Dandrea

L. Ruhlmann, J.), entered March 30, 2012 in a proceeding pursuant to

Family Court Act article 6. The order, among other things, awarded

respondents-petitioners primary physical custody of the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Pursuant to a stipulated order of custody entered in

2007, petitioner-respondent grandmother and respondents-petitioners

(respondents), the subject child’s maternal aunt and her husband, were

awarded joint legal custody of the subject child with the grandmother

having primary physical custody. In 2009, respondents brought the

child to their residence in Georgia and received an order of temporary

custody in that state. Thereafter, the grandmother and respondents

each petitioned for sole custody of the child pursuant to Family Court

Act article 6 and, following a hearing, Family Court awarded

respondents primary physical custody of the child.

We reject the grandmother’s contention that she was denied due

process based on cumulative errors by the court. Specifically, we

conclude that the court properly exercised its discretion in

permitting the telephonic testimony of an expert witness who resided

in another state (see Domestic Relations Law § 75-j [2]; Matter of

Kelly v Krupa, 63 AD3d 1395, 1396). We further conclude that the

grandmother failed to preserve for our review her challenge to the

medical evaluations of the child by the expert by moving to strike the

expert’s testimony on the grounds now asserted, and in any event, she

lacks standing to object to those evaluations as violative of her own

due process rights. The allegedly unauthorized evaluations implicated

the child’s due process rights as opposed to the due process rights of

the grandmother (see Matter of Awan v Awan, 75 AD3d 597, 599; Matter

of Marvin Q., 45 AD3d 852, 853, lv dismissed 10 NY3d 927; Campolongo v
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CAF 12-00745 

Campolongo, 2 AD3d 476, 476-477), and generally a litigant does not

have standing to raise rights belonging to another (see generally

Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773;

Matter of Fleischer v New York State Liq. Auth., 103 AD3d 581, 583, lv

denied 21 NY3d 856). We also conclude that the grandmother’s

challenge to the court’s temporary order of physical custody issued

mid-trial was rendered moot by entry of the final order of custody

(see Matter of Ramirez v Velez, 78 AD3d 1062, 1062-1063; see also

Matter of Kelly F. v Gregory A.F., 34 AD3d 1277, 1277). 

The grandmother contends that the court erred in failing to find

that respondents willfully violated a prior court order. We reject

that contention inasmuch as, at the time of the alleged violation, the

oral direction of the court had not been reduced to a written order

and it is unclear on this record whether respondents were aware of the

existence of the oral direction of the court at the time of the

alleged violation (cf. Matter of Dashawn G. [Diana B.], 117 AD3d 1526,

1527, lv dismissed 24 NY3d 951).

The grandmother further contends for the first time on appeal

that the court erred by not analyzing this matter as a relocation

case, and thus that contention is unpreserved for our review (see

Matter of York v Zullich, 89 AD3d 1447, 1448). In any event, we

conclude that her contention is without merit (see Matter of Tropea v

Tropea, 87 NY2d 727, 740-741). Contrary to the grandmother’s further

contention, respondents established the requisite change in

circumstances to warrant an inquiry into the best interests of the

child given “the changes in the child’s school schedule since the

entry of the prior order” (Matter of Stilson v Stilson, 93 AD3d 1222,

1223; Matter of Claflin v Giamporcaro, 75 AD3d 778, 779-780, lv denied

15 NY3d 710), and the extraordinarily acrimonious nature of the

parties’ relationship (see Matter of Orzech v Nikiel, 91 AD3d 1305,

1305-1306; York, 89 AD3d at 1448). We conclude that the court

properly “ ‘exercise[d its] power, in the interest of justice, to sua

sponte conform the petition to the evidence’ ” adduced at the factfinding hearing with respect to post-petition conduct that established

a significant change in circumstances (Matter of Angel L.H. [Melissa

H.], 85 AD3d 1637, 1637, lv denied 17 NY3d 711; see generally Matter

of Taylor R., 290 AD2d 830, 832).

We further conclude that the court properly determined that it

was in the child’s best interests to award primary physical custody to

respondents (see generally Matter of Marino v Marino, 90 AD3d 1694,

1695-1696). The record establishes that respondents were able to

provide for the child’s educational and therapeutic needs, as well as

her nutritional and health needs. The record further establishes that

respondents are in excellent physical health and are better able to

handle the stress involved in raising a child than is the grandmother. 

“[A] court’s determination regarding custody and visitation issues,

based upon a first-hand assessment of the credibility of the witnesses

after an evidentiary hearing, is entitled to great weight” (id. at

1695 [internal quotation marks omitted]), and we perceive no basis

upon which to disturb the court’s order.
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CAF 12-00745 

Finally, we note that, although it appears that several new

factual developments have arisen since the entry of the order on

appeal, there is no reason for us to remit the matter to Family Court

for a new best interests hearing, in light of the ongoing proceedings

in Family Court (cf. Matter of Kennedy v Kennedy, 107 AD3d 1625,

1626).

Entered: March 27, 2015 Frances E. Cafarell

Clerk of the Court